Citation Nr: 21063104 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 190504-8622 DATE: October 13, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss prior to January 21, 2021 is denied. Entitlement to an increased rating in excess of 20 percent for bilateral hearing loss from January 21, 2021 to May 21, 2021 is denied. Entitlement to an increased rating in excess of 30 percent for bilateral hearing loss since May 21, 2021 is denied. Entitlement to an increased rating in excess of 10 percent for tinnitus is denied. FINDINGS OF FACT 1. Prior to January 21, 2021, the Veteran's bilateral hearing loss was manifested by no worse than Level III in the right ear and Level IV in the left ear. 2. From January 21, 2021 to May 21, 2021, the Veteran's bilateral hearing loss was manifested by no worse than Level IV in the right ear and Level VIII in the left ear. 3. Since May 21, 2021, the Veteran's bilateral hearing loss is manifested by no worse than Level VII in the right ear and Level VI in the left ear. 4. The current 10 percent disability rating assigned for evaluation of bilateral tinnitus is the maximum schedular rating, and no exceptional circumstances not contemplated by the criteria are extant. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 10 percent for bilateral hearing loss prior to have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. The criteria for an increased evaluation in excess of 20 percent for bilateral hearing loss from January 21, 2021 to May 21, 2021 have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 3. The criteria for an increased evaluation in excess of 30 percent for bilateral hearing loss since May 21, 2021 have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 4. The claim for an increased evaluation, in excess of 10 percent for tinnitus is without legal merit. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.21, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1952 to June 1954. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2019 rating decision of the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In a December 2019 decision, the Board denied the Veteran's claims for entitlement to increased evaluations for bilateral hearing loss and tinnitus, among other issues. The Veteran appealed the case to the Court of Appeals for Veterans Claims (Court). In July 2020, the parties agreed to a joint motion for remand (JMR). The Court vacated the part of the Board's decision which denied entitlement to increased evaluations for bilateral hearing loss and tinnitus, and remanded the matter to the Board for action consistent with the JMR. The matters were remanded because the Board failed to consider a January 2019 private audiological examination and failed to consider whether the issue of sleep disturbance, as secondary to tinnitus, was reasonably raised by the record. In December 2020, the Board remanded the matters for additional development, including providing an examination for sleep disorders and obtaining private medical records from the January 2019 audiological examination. In February 2021, VA asked the Veteran to provide a release to allow VA to request records from the private audiologist who conducted the January 2019 audiological assessment, or to provide the records himself. To date, no response has been received. While the remand was pending, in January 2021, the AOJ issued a rating decision increasing Veteran's evaluation of bilateral hearing loss from 10 percent to 20 percent, effective January 21, 2021. In June 2021, the AOJ issued a rating decision increasing Veteran's evaluation of bilateral hearing loss from 20 percent to 30 percent, effective May 21, 2021. As the grant of the 20 percent evaluation for the period from January 21, 2021, to May 21, 2021, and the grant of 30 percent since May 21, 2021, do not constitute full grants of the benefits sought, the issues remain on appeal. The Veteran was afforded a VA sleep disorder examination in April 2021 which determined that it was at least as likely as not that the Veteran's sleep disturbance was related to his service-connected tinnitus. In a July 2021 rating decision Veteran was granted entitlement to service connection for primary insomnia disorder as secondary to service-connected tinnitus. This action constitutes a full grant of the benefit sought and this issue is no longer on appeal. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Bilateral Hearing Loss Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2020). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability, as per the regulatory history of 38 C.F.R. § 4.85 and § 4.86. Functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Complaints related to actual functional impairment are therefore factored into the criteria as applied. Prior to January 21, 2021 Veteran submitted a January 2019 private audiological exam. It is unclear whether the January 2019 examination was conducted using a Maryland CNC controlled speech discrimination test, which is required for an examination to be valid for VA purposes. To fulfill VA's duty to clarify whether the January 2019 private examination was conducted using the Maryland CNC test, a request for release was sent to the Veteran so that the VA could request those records. As noted above, no response has been received to date. In the absence of speech recognition score, the January 2019 private audiological exam may not be relied upon. 38 C.F.R. § 4.85. The Board will proceed with evaluation based on the evidence of the record. The Veteran was afforded a VA examination and audiometric testing was performed on April 9, 2019. The testing revealed: HERTZ 1000 2000 3000 4000 Average RIGHT 35 60 75 95 66 LEFT 40 70 90 95 74 Testing revealed speech recognition ability of 86 percent in the right ear and of 70 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, hearing loss in the right ear was assigned a numeric designation of Level III, and hearing loss in the left ear is assigned a Level VI. Where hearing loss is at Level VI in the poorer ear and a Level III in the better ear, a 10 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. The audiometric finding above reveal that the Veteran's hearing loss does not warrant a rating in excess of the 10 percent previously assigned. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107 (b). From January 21, 2021 to May 21, 2021 The Veteran was afforded a VA examination and audiometric testing was performed on January 21, 2021. The testing revealed: HERTZ 1000 2000 3000 4000 Average RIGHT 40 65 75 95 69 LEFT 40 80 90 95 76 Testing revealed speech recognition ability of 78 percent in the right ear and of 56 percent in the left ear. The Veteran reported that he was unable to hear conversations and the television with his hearing aids. Applying these results to Table VI in 38 C.F.R. § 4.85, hearing loss in the right ear was assigned a numeric designation of Level IV, and hearing loss in the left ear is assigned a Level VIII. Where hearing loss is at Level VIII in the poorer ear and a Level IV in the better ear, a 20 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. The audiometric finding above reveal that the Veteran's hearing loss does not warrant a rating in excess of the 20 percent. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b). Since May 21, 2021 The Veteran was afforded a VA examination and audiometric testing was performed on May 21, 2021. The testing revealed: HERTZ 1000 2000 3000 4000 Average RIGHT 40 60 75 100+ 69 LEFT 45 80 100 95 80 Testing revealed speech recognition ability of 64 percent in the right ear and of 72 percent in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, hearing loss in the right ear was assigned a numeric designation of Level VII, and hearing loss in the left ear is assigned a Level VI. Where hearing loss is at Level VII in the poorer ear and a Level VI in the better ear, a 30 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. The audiometric finding above reveal that the Veteran's hearing loss does not warrant a rating in excess of the 30 percent. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107 (b). The Veteran has not submitted any additional evidence that shows his hearing loss warrants a higher disability evaluation during any of the periods on appeal. The Board has considered the Veteran's complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. The functional effects of hearing loss on his daily life activities and occupational functioning were discussed by the Veteran at his VA examinations. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran is noted to have reported difficulty hearing conversations; however, this is reflective of the types of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2018). Accordingly, the examinations of record are afforded great probative value in determining the Veteran's level of hearing impairment. Tinnitus The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected tinnitus. The Veteran was granted an initial 10 percent evaluation pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260, the maximum evaluation assignable under that diagnostic code. A single evaluation is assigned for recurrent tinnitus whether it is present in one or both ears. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2). Neither Diagnostic Code 6260, nor any other Diagnostic Code allows the assignment of a schedular evaluation in excess of 10 percent for tinnitus affecting both ears, and the Veteran has not reported, nor does the evidence of record show, any unusual symptoms, manifestations, or impacts of tinnitus that render the Schedule inapplicable. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, the claim for an initial rating in excess of 10 percent for tinnitus must be denied. As is noted above sleep symptomatology has been addressed in the award of separate service connection for a sleep disorder, rated 30 percent disabling from April 12, 2021; the Veteran has not appealed this decision as yet. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.